A law firm has obtained a loan from a bank. The firm has secured the loan by providing
a security interest in the firm's accounts receivable. The bank has subsequently requested
that the law firm provide the names of the firm's clients as well as the amounts which
those clients owe.

Question Presented

Whether the Texas Disciplinary Rules of Professional Conduct prohibit the disclosure
of: (i) the names of the firm's clients, and (ii) the amounts owed by each client?

Answer

Yes, such disclosures are prohibited by Texas DR 1.05
"Confidentiality of Information."

Discussion

Texas Disciplinary Rule 1.05 addresses the confidentiality of lawyer-client
communications. As did its predecessor rule, Texas Code DR
4-101, DR 1.05 seeks to protect the free flow of information between attorney and
client. In contrast to the former rule, however, DR 1.05 provides increased protection by
expanding the scope of confidentiality. (See generally C. Wolfram, Modern Legal
Ethics 298 (1986) (in which the author describes the scope of the protections provided
by the existing and former ABA codes. Texas' existing and former rules draw upon these ABA
codes).) As a result, information which previously may have received scant protection may
now fall squarely under DR 1.05's cloak of confidentiality.

This expansion of the zone of confidentiality reflects the American Bar Association's
increasing concern that the former Model Code DR 4101 did not adequately reflect the
fiduciary duties which a lawyer owes to his client. (See Schuwerk & Sutton, A
Guide to the Texas Disciplinary Rules of Professional Conduct, 27A Hous.L.Rev. 1, 81
(1990).) Admittedly, DR 4-101 addressed "confidentiality" generally. It did so,
however, in a fashion which tended to suggest an examination of the attorney-client
privilege to determine the scope of that confidentiality. The former rule's use of
"secrets and confidences" terminology recognized that "confidences"
were to receive full protection under the attorney-client privilege. The rule's protection
of "secrets" was less emphatic, however, due to the potential for disclosure
where the secret would not be embarrassing or detrimental to the client. Such a framework
was unduly limited inasmuch as it failed to emphasize that confidentiality arises from a
source much broader than any mere evidentiary privilege.

Consider that a lawyer's obligation of confidentiality springs not so much from the
attorney-client evidentiary privilege as it does from the Law of Agency. (See
Schuwerk at 80; See Also ABA/BNA Lawyer's Manual on Professional Conduct
55:302 (1986).) An attorney acts in his or her capacity as fiduciary and, in so doing,
submits himself or herself to the strictures of relevant Agency law. As a general rule, an
agent may not disclose or use information relating to the principal where such information
is obtained during the course of the agent's employment. (See Restatement (Second)
of Agency § 395 (1957); Schuwerk at 80.) Information gained during the agency
relationship is not defined in terms of its available protection under evidentiary
privileges. Thus the protections afforded under Agency law exceed those which arise solely
from an attorney-client privilege.

The new DR 1.05(a) recognizes this greater
protection. The rule provides that "confidential" information includes both
"privileged information" as well as "unprivileged client information."
Privileged information is that information enjoying protection under the attorney-client
evidentiary privilege. "unprivileged client information" is everything else.
Taken together, privileged and unprivileged information comprise the entire spectrum of
client information.

Disciplinary Rule 1.05(a) explicitly provides that both types of information are
confidential in nature. The Rule states in pertinent part that "... a lawyer shall
not knowingly: (1) Reveal confidential information of a client or a former client to: (i)
a person that the client has instructed is not to receive the information; or (ii) anyone
else, other than the client, the client's representatives or the members, associates, or
employees of the lawyer's law firm." Application of the rule prohibits the law firm
from disclosing the requested information.

The result is similar to the one reached in Ethics Opinion 464
(52 Tex.B.J. 1200 (1989)). That opinion examined a similar fact pattern in which an
attorney sought to provide a collection agency with the names of the attorney's indebted,
delinquent clients. DR 1.05 prohibited the release of the information because to have
allowed as much would have been to divulge the same confidential information, i.e.,
names of clients and the amounts they owed.

Conclusion

Absent a client's informed consent, the law firm may not reveal either the names of its
clients or the amounts which those clients owe.